GOP to FCC: analysis first, then net neutrality rules—maybe

The Republicans have declared themselves the Party of No Neutrality with a …

The Republican Party has ramped up its opposition to Federal Communications Commission proposals to enact tough net neutrality rules with a call for the agency to conduct a "market analysis" of the broadband landscape before going any further. Representative Cliff Stearns of Florida, who asked for the study on Monday, was not shy about telling the FCC what he thinks it should conclude. "At first glance, net neutrality regulations may appear reasonable and harmless, but, a deeper examination reveals that net neutrality is neither reasonable nor harmless," he warned. "These mandates would harm consumers, reduce competition, and discourage new investment and innovation at a time of tremendous technological growth."

Stearns is the top Republican on the House Commerce Committee's Communications, Technology and the Internet Subcommittee. FCC Chair Julius Genachowski says he wants the Commission to beef up its "Four Freedoms" Internet Policy Statement with two more provisions: a plain thou-shalt-not against device discrimination on the 'Net and a transparency principle—ISPs must inform subscribers about their network management practices. The FCC plans to launch a rulemaking on the matter in a little over two weeks.

But Stearns says that before any of this goes through, he wants an agency probe of the Internet market showing that there's a "failure" requiring it. "The FCC bears the responsibility to prove a market failure, especially since its 2002, 2005, 2006, and 2007 decisions on cable modem service, digital subscriber line service, broadband over power line service, and wireless broadband service were predicated on the notion that the broadband market nationwide is competitive and that regulation is unwarranted." The FCC's cable modem decision, which deregulated the cable ISP services, was not supported by the agency's then-Democratic minority, now the majority at the FCC.

The letter did concede that such an FCC study might conclude that regulation is still necessary, but if it does, "the intervention should be tailored to your analysis and should be the minimum required to prevent the practices you have identified as appropriate targets of regulation," Stearns told Genachowski.

Surprised and disappointed

The missive, signed by 20 House Republicans, followed a statement sent to President Obama on Friday by House Minority Leader John Boehner (R-OH) and Minority Whip Eric Cantor of Virginia. Those two told the White House that given the state of the economy, they were "extremely surprised and disappointed" that the FCC plans to go through with enacting net neutrality rules (they can't have been too surprised; net neutrality was part of Obama's campaign platform). "We believe that network neutrality regulations would actually thwart further broadband investment and availability, and that a well-reasoned broadband plan would confirm our view," Boehner and Cantor concluded.

And that commentary was proceeded by the efforts of seven Republicans in the Senate to whack net neutrality via an amendment to a Department of Interior appropriations bill. Kay Bailey Hutchison's (R-TX) rider would have forbidden the FCC to spend any money to "implement any Internet neutrality or network management principles" or "to promulgate any rules relating to such principles." It appears that the Senate never voted on the proposal.

The reform group Public Knowledge sent us a response to the Stearns letter, dismissing his investment concerns as a "delaying tactic."

"Billions of dollars were invested in the Internet ecosystem, not only by carriers, but by companies doing business on the Internet, and by consumers subscribing to Internet services," declared PK's Gigi B. Sohn. "That is the investment we seek to expand. There is nothing in banning discrimination on the basis of source, ownership or destination of bits would create lower speeds or raise prices. Those are simply distractions."

The road ahead

You can expect plenty of this kind of back-and-forth as the FCC's net neutrality proceeding gets underway. Here's a quick tutorial and time-line on what should happen next. The Commission has announced that it will launch a Notice of Proposed Rulemaking "on policies to preserve the free and open Internet" at its next Open Commission meeting scheduled for Thursday, October 22. Once that NOPR gets published in the Federal Register, the agency will solicit, first, formal comments on the proposal, and then replies to the comments. Then, after some period of deliberation, if a simple majority of three out of five Commissioners agree on the need for new rules, they'll ask the FCC's staff to write up a Report and Order, which the majority will vote for at a subsequent Open Commission gathering.

We'd be surprised if the FCC's Republicans—Robert M. McDowell and Meredith Attwell Baker—go with Genachowski's proposals, but you never know. It doesn't appear likely that Republicans can stop this process on Capitol Hill—although additional letters and statements will doubtless follow it with regularity. But it's quite possible that the telcos and/or their allies will sue the FCC in some federal district court once a decision is made.

Speaking of lawsuits, what the DC Circuit Court of Appeals decides about Comcast's action against the FCC's Order sanctioning it for BitTorrent throttling could also have an impact on this proceeding, especially if DC rules during the NOPR process. Even if the court doesn't, the various third-party briefs being sent to the judges, such as the latest from Professors Lawrence Lessig, Tim Wu, and others defending the FCC's authority to act, will certainly influence this discussion on a "going forward basis," as the policy wonks like to say.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.